State v. Escobar

“[E]yewitness identification evidence . . . must include, at minimum, proof under OEC 602 that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof under OEC 701 that any identification is both rationally based on the witness’s first-hand perceptions and helpful to the trier of fact.” State v. Lawson/James, 352 Or 724 (2012).

Defendant appealed his conviction of four crimes, including second-degree assault. Defendant assigned error to trial court’s denial of his motion to exclude testimony presented at the pretrial hearing. Defendant argued that the eyewitness identification testimony was “highly suggestive,” and was not admissible under OEC 602 and 701, or if not, then OEC 403. The State argued even if the evidence was admitted in error, the error was harmless. “[E]yewitness identification evidence . . . must include, at minimum, proof under OEC 602 that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof under OEC 701 that any identification is both rationally based on the witness’s first-hand perceptions and helpful to the trier of fact.” State v. Lawson/James, 352 Or 724 (2012). Using the Lawson/James analytical framework, the Court reasoned the witnesses’ testimony were closer to speculation, and the State did not meet its burden of proof that the witnesses were “able to perceive the fact and did actually perceive the fact.” The Court reasoned that other witness testimony was more reliable and strengthened the State’s “theory of the case.” The Court concluded that the “erroneous admission” of the eyewitness evidence was harmless given the sufficient identification evidence that was admitted without objection. Affirmed.